Opinion
08-22-00035-CR
01-27-2023
FRANCISCO GAXIOLA ZAVALA, Appellant, v. THE STATE OF TEXAS, Appellee.
Do Not Publish
Appeal from the 109th Judicial District Court of Andrews County, Texas (TC# 7983)
Before Rodriguez, C.J., Palafox, J., and Marion, C.J. (Ret.) Marion, C.J. (Ret.) (Sitting by Assignment)
MEMORANDUM OPINION
YVONNE T. RODRIGUEZ, CHIEF JUSTICE
Appellant, Francisco Gaxiola Zavala, appeals his conviction for indecency with a child by sexual contact. See TEX. PENAL CODE § 21.11(a)(1). In a single issue, Appellant challenges the legal sufficiency of the evidence to establish his identity as the perpetrator. We affirm.
BACKGROUND
Appellant was indicted for indecency with a child against, then-seven-year-old, MM. At trial, MM (now ten years old) testified that at the time of the offense, she was living in Andrews, Texas with her mother and a man named "Francisco." After explaining there were certain parts on a boy's and girl's bodies that should not be looked at or touched, MM testified that someone had made her touch their private parts, which she described as "the front of a man-bottom." She related that when she was seven years old, "Francisco" came into her room and "made [her] touch it" and "told [her] to [squeeze] it." It felt sticky and slimy. MM testified she did not remember what Francisco looked like, and she was unable to identify Appellant in court. However, MM reiterated no one else lived with her and her mother other than Francisco.
Because the victim was a minor at the time of the offense, we refer to her as "MM," as Appellant refers to her in his brief. See TEX. R. APP. P. 9.10(a)(3), (d).
MM's grandmother, Irma Ontiveros, testified that when MM came to Arizona for the school break in March 2019, MM approached her and said, "Mima, I need to tell you something. . . . Pacheco grabs my hand and puts it on his penis." By then, MM's father, Omar Ontiveros, was living with Irma in Arizona, and when he got home from work, she informed him of MM's outcry; the next day, Omar took MM back to Andrews and filed a police report. Appellant was subsequently arrested at the Andrews residence where he had been living with MM and her mother.
Irma testified MM used the word "pico," which mean penis, but is directly translated as "pointed thing."
During cross examination, when defense counsel asked him, "And it was during that week that she told your mother that she had been assaulted by my client," Omar responded, "yes."
Irma explained that, at the time, MM referred to Appellant as "Pacheco" because she was unable to pronounce his name. Thus, she indicated, when MM used the name "Pacheco," she was referring to Appellant. Irma positively identified Appellant in court, and Omar also identified Appellant in court as the man that moved in with MM and her mother shortly after he (Omar) moved out.
The jury returned a guilty verdict and assessed punishment at six years' confinement and a $2,500 fine. This appeal followed.
DISCUSSION
The standard for reviewing a legal-sufficiency challenge is whether, viewing the evidence and the reasonable inferences therefrom in the light most favorable to the verdict, the cumulative and combined force of the evidence would have permitted any rational trier of fact to find the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Braughton v. State, 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018); Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012). The jury is the sole arbiter of the weight and credibility to be given the evidence, and we do not substitute our judgment for that of the jury. See Jackson, 443 U.S. at 319; Merritt, 368 S.W.3d at 525.
In his sole issue, Appellant maintains that the "identity of the perpetrator has not been established." Appellant appears to base this claim on MM's inability to make a positive in-court identification of him as her assailant. We agree with the State, however, that the absence of a victim's in-court identification does not render the evidence on the issue of identity legally insufficient. See Couchman v. State, 3 S.W.3d 155, 162-63 (Tex. App.-Fort Worth 1999, pet. ref'd.) (rejecting argument that evidence of appellant's identity as perpetrator was legally insufficient because the child-victim never identified him in court as her assailant, holding evidence of identity was legally sufficient where child-victim testified "Tony" touched her and it hurt, child-victim's grandmother testified appellant went by the name "Tony," and grandmother identified appellant in court as the person she referred to in her testimony as "Tony" (citing Meeks v. State, 897 S.W.2d 950, 954-55 (Tex. App.-Fort Worth 1995, no pet.)); see also Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018) ("Identity may be proven by direct evidence, circumstantial evidence, or by reasonable inferences from the evidence." (quoting Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009)).
Here, Irma explained that, at the time of MM's outcry, MM referred to Appellant as "Pacheco" due to her inability to pronounce Appellant's name, "Francisco." Irma positively identified Appellant as "Francisco," the person to whom MM previously referred to as "Pacheco." Omar likewise identified Appellant as the man who moved in with MM and her mother, and during cross-examination by defense counsel, he agreed that MM made an outcry against defense counsel's "client," i.e., Appellant. Even though she could not remember what he looked like and was thus unable to identify him in court, MM did not equivocate about the fact that it was "Francisco" who touched her inappropriately-she did not waiver on her testimony that the assault happened when she was living in Andrews or that Francisco and her mother were the only persons with whom she resided in Andrews before moving in with her father and grandparents in Arizona. Indeed, Appellant was arrested at MM's and her mother's home.
Appellant does not explain how this record evidence would bar the jury from reasonably concluding, beyond a reasonable doubt, that he was the assailant in question. And even if MM's testimony-separate and apart from her inability to make a positive in-court identification-were construed to fail to identify Appellant as the perpetrator (which we do not hold), such failure does not render the other identification evidence in the record legally insufficient. See Jones v. State, 500 S.W.2d 661, 666 (Tex. Crim. App. 1973) (failure of some witnesses to identify appellant as one of the robbers did not render other witnesses' positive identification of him as one of the assailants insufficient); see also Ingerson, 559 S.W.3d at 509; Couchman, 3 S.W.3d at 162-63; Meeks, 897 S.W.2d at 954-55.
As such, we conclude that, viewed in the light most favorable to the verdict, the combined and cumulative force of the evidence and the reasonable inferences therefrom allowed the jury to January 27, 2023 rationally conclude, beyond a reasonable doubt, that Appellant was the perpetrator of this offense. Accordingly, we overrule Appellant's sole issue on appeal.
CONCLUSION
Having overruled Appellant's sole point of error, we affirm. .